Rajasthan High Court Weekly Roundup: April 25 To May 1, 2022

Neeraj Jain v. State Of Rajasthan & Ors. 2022 LiveLaw (Raj) 147

Manisha Khator v. State of Rajasthan 2022 LiveLaw (Raj) 148

Doli Mandir Sri Mahadev Ji (Pahadeshwar Mahadev), Ludrada Tehsil Siwana, District Barmer Through Its Devotee Shri Vikram Singh v. District Collector, Barmer & Ors. 2022 LiveLaw (Raj) 149

Vishal Kochar v. Smt. Pulkit Sahni & Anr. 2022 LiveLaw (Raj) 150

Sunita Meena v. Rajasthan High Court, Jodhpur through its Registrar General & Anr. 2022 LiveLaw (Raj) 151

Sanjay Ghiya v. Union Of India 2022 LiveLaw (Raj) 152

Anop Singh v. State Of Rajasthan, Through Pp 2022 LiveLaw (Raj) 153

Judgments/ Orders of the Week

1. Without Revoking Appointment of APP, Govt's Action In Just Directing Special PP To Appear In Case Doesn't Appear Just, Proper & Correct: Rajasthan HC

Case Title: Neeraj Jain v. State Of Rajasthan & Ors.

Citation: 2022 LiveLaw (Raj) 147

The Rajasthan High Court observed that the action of the State Government in just directing the Special Public Prosecutor to appear in the case after taking the files from Additional Public Prosecutor, does not appear to be just, proper and correct. More particularly, when the order of appointment of Additional Public Prosecutor has not been revoked, added the court.

The court noted that the State Government after having taken into consideration the special circumstances of the present case, had appointed Shri Shreejee Bhavsar to appear as Special Public Prosecutor in the case vide order dated 28.03.2018. The court added that while this order is still in force, a direction has been issued to transfer the files of this case to Shri Prem Singh Panwar who is regularly appointed Additional Public Prosecutor in the court of Additional Sessions Judge (Women Atrocities Cases), Udaipur.

Justice Vinit Kumar Mathur, while allowing the writ petition, observed,

"The action of the State Government in just directing the Special Public Prosecutor to appear in the case after taking the files from Shri Shreejee Bhavsar, does not appear to be just, proper and correct. More particularly, when the order of appointment of Shri Shreejee Bhavsar dated 28.03.2018 has not been revoked."

2. 'No Imminent Threat': Rajasthan High Court Directs SP To Consider Postgraduate Woman's Protection Plea

Case Title: Manisha Khator v. State of Rajasthan

Citation: 2022 LiveLaw (Raj) 148

The Rajasthan High Court disposed of a plea filed by a postgraduate woman raising grievance that she wants to pursue her studies, whereas she is being harassed by the police as her father has lodged a missing person report.

Being a resident of Ganganagar, the petitioner is presently residing as a paying guest at Jodhpur and wants to continue her study. In this regard, she prayed for adequate police protection from her parents.

The court opined that there is no specific instance or imminent threat to the petitioner and if the petitioner is having any apprehension or threat perception about her life and liberty from her parents, she may move appropriate representation before the Superintendent of Police, Jodhpur (East) indicating her concern

Justice Dinesh Mehta, while disposing of the criminal miscellaneous petition, observed,

"Though no specific instance or imminent threat has been pleaded but considering the submissions made by learned counsel for the petitioner and having regard to the facts and circumstances of the case, this Court is of the opinion that if the petitioner is having any apprehension or threat perception about her life and liberty from her parents, she may move appropriate representation before the Superintendent of Police, Jodhpur (East) indicating her concern."

3. Pahadeshwar Mahadev Temple: Rajasthan High Court Directs SDO To Decide Representation Against Alleged Encroachment

Case Title: Doli Mandir Sri Mahadev Ji (Pahadeshwar Mahadev), Ludrada Tehsil Siwana, District Barmer Through Its Devotee Shri Vikram Singh v. District Collector, Barmer & Ors.

Citation: 2022 LiveLaw (Raj) 149

The Rajasthan High Court has directed the Sub Division Officer concerned in the area to look into a representation to be made before it against alleged encroachment, unauthorized constructions demolition of structures at the Pahadeshwar Mahadev Temple in Barmer district.

The division bench comprising Justice Vinod Kumar Bharwani and Justice Saneep Mehta observed that the petitioner has been climbing up the wrong tree for ventilating his grievances by filing the representations to the Chief Minister and the Principal Secretary, Devasthan Department and thereby not addressing a dedicated representation to the Sub Division Officer (SDO) concerned.

The petitioner Vikram Singh claiming to be a devotee of Doli Mandir Sri Mahadev Ji (Pahadeshwar Mahadev) Ludrada, Tehsil Siwana, District Barmer approached the court seeking direction to Datnarayan Giri Baba-respondent No.4 restraining him to raise any new construction in the temple premises and further restraining him to remove, demolish, destroy any existing construction of the temple premises including the historical entrance pole of the temple.

4. Whether Criminal Revision Petition Maintainable Against Order Granting Interim Maintenance U/s 125 Cr. P.C: Rajasthan HC Examines

Case Title: Vishal Kochar v. Smt. Pulkit Sahni & Anr.

Citation: 2022 LiveLaw (Raj) 150

The Rajasthan High Court observed that an order of interim maintenance passed under Sec. 125 of Cr.P.C by any Family Court or Magistrate, during the pendency of the proceeding, remains effective up to the final order only and does not decide the rights and liabilities of the parties in finality.

In this regard, the court opined that the impugned order dated 27.01.2021, regarding interim maintenance under Section 125 Cr.P.C., is an interlocutory order, hence revision petitions being not maintainable, either under Section 397/401 Cr.P.C. or under Section 19 of the Family Courts Act.

The court considered the question whether the order of interim maintenance passed under Section 125 of Cr.P.C is an interlocutory order and consequently, whether criminal revision petition is maintainable against that order or not.

Justice Uma Shanker Vyas, ordered,

"23. An order of interim maintenance passed under Sec. 125 of Cr.P.C by any Family Court or Magistrate, during the pendency of the proceeding, remains effective up to the final order only and does not decide the rights and liabilities of the parties in finality.

5. Rajasthan Judicial Service: High Court Dismisses Widow's Plea Seeking Horizontal Reservation In ST Category

Case Title: Sunita Meena v. Rajasthan High Court, Jodhpur through its Registrar General & Anr.

Citation: 2022 LiveLaw (Raj) 151

The Rajasthan High Court has dismissed a widow's challenge to the validity of the category-wise merit list prepared after preliminary examinations for recruitment to the post of Civil Judge (Junior Division) and Judicial Magistrate in the Rajasthan Judicial Services.

The Petitioner was aggrieved over her non-inclusion by giving benefit of horizontal reservation as widow in ST category.

" Challenge to the reservation policy and prescription as provided under the advertisement cannot be permitted to be challenged at the instance of unsuccessful candidates after the candidate has been declared unsuccessful," division bench of Acting Chief Justice Manindra Mohan Shrivastava and Justice Sameer Jain said while dismissing the petition as it being sans substratum.

6. Respondents Also Have Right To Legal Representation Before Regulatory Authority/ Tribunal: High Court Reads Down S.56 Rajasthan RERA Act

Case Title: Sanjay Ghiya v. Union Of India

Citation: 2022 LiveLaw (Raj) 152

The Rajasthan High Court has observed that Section 56 of the Rajasthan Real Estate (Regulation and Development) Act, 2016, inasmuch as it excludes Respondents' right to legal representation before the Appellate Tribunal or the Regulatory Authority or the adjudicating officer, as the case may be, is ultra vires.

Accordingly, it declared that the provision includes the word "Respondent", who would also be entitled to representation (like the applicant or appellant) to either appear in person or authorize one or more Chartered Accountants or Company Secretaries or Cost Accountants or Legal Practitioner or of its officer to present his or its case before the Appellate Tribunal or Regulatory Authority or the Adjudicating Officer, as the case may be.

The validity of Section 56 of the Act of 2016 was challenged by the petitioner mainly on the ground that it is hit by Articles 14, 19(1) (g) and 21 of the Constitution of India.

Section 56 gave right of legal representation only to the applicant/ appellant. However, no such right of representation has been given to the respondent against whom the proceedings have been initiated before the Appellate Tribunal or before the Regulatory Authority or the Adjudicating Officer.

7. Engagement Of Child Not Offence U/S 11 Of Child Marriage Act: Rajasthan High Court Quashes Criminal Proceedings Against Father

Case Title: Anop Singh v. State Of Rajasthan, Through Pp

Citation: 2022 LiveLaw (Raj) 153

The Rajasthan High Court observed that Section 11 of the Prohibition of Child Marriage Act, 2006 makes it abundantly clear that organising marriage is a sine qua non to constitute an offence under the Act. However, mere engagement of a child in any case does not amount to an offence under Section 11, added the court.

Section 11 of the Act provides punishment for promoting or permitting solemnisation of child marriages while Section 15 of the Act states that notwithstanding anything contained in the CrPC), an offence punishable under this Act shall be cognizable and non-bailable.

Justice Dinesh Mehta observed,

"A perusal of Section 11 of the Act of 2006, makes it abundantly clear that organising marriage is a sine qua non to constitute an offence under the Act of 2006. Engagement of a child in any case does not amount to an offence under Section 11 of the Act of 2006. Admittedly, on the fateful day of 25.02.2020, petitioner's son was getting engaged which cannot be confused with or construed to be a marriage, falling foul to the provisions of the Act of 2006."

Other Important Updates

1. 'No Harassment In Name Of Interrogation': Rajasthan HC Grants Interim Relief To Man Accused Of Sexual Assault By Ex-Partner A Day Before His Marriage

Case Title: Vishwas Khatri v. State Of Rajasthan & Anr

The Rajasthan High Court has granted protection from arrest and harassment in the name of interrogation to a man (petitioner) whose ex-partner filed an FIR against him, alleging sexual assault. The FIR was filed a day before the marriage of the petitioner with another girl.

Justice Dinesh Mehta, observed,

"Issue notice to the respondents, returnable on 26th May, 2022. Meanwhile, neither the petitioner shall be arrested nor shall he be harassed in the name of interrogation."

Appearing for the petitioner, Sr. Adv. Ravi Bhansali pointed out that the petitioner and complainant were scheduled to marry on 18th July, 2021 which got postponed on account of the injury which the complainant had purportedly suffered whereafter, there arose some differences.

2. Lawyer Facing Charges For Alleged Misbehavior With Cop Accuses Court's Usher Of Bribery, Seeks Adjournment: Rajasthan HC Withdraws Interim Protection

Case Title: Pawan Kumar Pareek v. State Of Rajasthan & Ors.

Justice Narendra Singh Dhaddha of the Rajasthan High Court, Jaipur on Wednesday withdrew the interim protection from arrest granted to Advocate Goverdhan Singh in case pertaining to misbehaviour with a female police officer, observing that the adjournment sought by the petitioner has apparently not been bona fide.

Notably, Singh had posted a video on social media alleging the involvement of Justice Dhaddha's Usher in taking bribe from an Advocate.

Appearing in person, Singh submitted that Justice Dhaddha's bench cannot hear since its Usher was involved in taking bribe. He also sought an adjournment from the court on the ground that a letter for transfer of these matters has been submitted before the before the Chief Justice and that the respondent/s have not filed reply till the date of hearing.

"I have heard learned counsel for the petitioner as well as learned Public Prosecutor and learned counsel for the respondent/s. Adjournment sought by the learned counsel for the petitioner, does not seem to be bona fide, so interim protection given to the petitioner/s by this Court is withdrawn," the Judge ordered.

3. REET 2021 Paper Leak: Rajasthan High Court Refuses To Stay Level-I Recruitments

Case Title: Akhil Bhartiya Vidyarthi Parishad (Abvp) v. The State Of Rajasthan

In connection with the paper leak case of Rajasthan Eligibility Examination for Teacher, 2021, the High Court has refused to stay the recruitment process with respect to Level-I examination. It however made it clear that the appointments, if any made, would be subject to the outcome of the writ petition.

Acting Chief Justice Manindra Mohan Shrivastava and Justice Sameer Jain, observed,

"Though at this stage, a prayer is made that as far as a result of REET Level-I examination is concerned, respondents may be restrained from making appointments out of that select list, this aspect would be considered on the next date of hearing. However, considering that the action of the respondents in not cancelling the REET Level-I examination is under scrutiny by this Court, we would, at this stage, observe that appointments, if any made, would be subject to the outcome of the writ petition."

4. Can Medical Assessment & Rating Board Recommend Cancellation Of Admission Of Students? Rajasthan High Court To Consider

Case Title: Geetanjali Medical College And Hospital v. The Union Of India

Rajasthan High Court is set to determine whether the Medical Assessment & Rating Board (MARB) can recommend for cancellation of admission of the students in various medical courses.

The question has arised in the background of several writ petitions filed by medical colleges and its students, challenging the recommendations made by MARB for withdrawal of letter of permission, cancellation of admission in under-graduate and post-graduate courses for the academic year 2021-22 in the petitioner-institutions.

Some of the writ petitions have been filed on behalf of the institutions, where admissions were granted to the students for the academic year 2021-22 in the under-graduate as well as postgraduate courses and some of the writ petitions have been preferred on behalf of the students, who have been admitted in these courses.

The Court has granted interim relief to the students who were already admitted to pursue their studies in the petitioner–institutions for the session 2021 and has further ordered that a copy of the writ petitions be supplied to counsel for the respondents within a period of one week.